Robert J. Smith

The successful plaintiffs sought costs following a motion in civil litigation.

The court considered the relevant factors under Rule 57 of the Rules of Civil Procedure, including success on the motion, proportionality, complexity of the issues, and the conduct of the parties.

The defendants argued that costs should not be awarded due to alleged deficiencies in disclosure discovered during examinations for discovery.

The court declined to address the disclosure dispute at this stage and left any potential consequences to the trial judge.

Finding the plaintiffs completely successful and the claimed partial indemnity costs reasonable, the court ordered the defendants to pay costs in the amount of $9,500 inclusive of HST.

The court determined costs following the disposition of a civil proceeding.

After considering the parties’ written cost submissions and the relative success of the parties, the court found that the plaintiff had been more successful than the defendants.

Applying the principle that costs should reflect the reasonable expectations of the unsuccessful party, the court awarded the plaintiff partial indemnity costs.

The defendants were ordered to pay costs of $13,000 plus HST and disbursements of $585.25.

The plaintiff sought costs on a substantial indemnity basis following a successful refusals motion regarding the defendant's examination for discovery.

The defendant had initially refused to answer 62 questions but answered most of them in writing after the motion was brought.

The court found the defendant's conduct in refusing to answer during oral discovery caused unnecessary delay and expense, but was not so unreasonable as to warrant substantial indemnity costs.

Costs were fixed at $14,678 inclusive of disbursements on a partial indemnity basis.

Following a refusals motion arising from examinations for discovery in a libel action, the plaintiff sought costs on a substantial indemnity basis, alleging the defendant made unfounded accusations of improper interference and insufficient document searches.

The defendant opposed the request and argued the plaintiff should receive no costs because her employer was funding the litigation and because the claimed time and rates were excessive.

The court held that third‑party reimbursement of legal fees does not disentitle a successful party from recovering costs and that the plaintiff had been completely successful on the refusals motion.

Although the defendant’s conduct did not justify substantial indemnity costs, partial indemnity costs were appropriate.

The defendant’s alleged inability to pay was given little weight.

Following a motion where the defendant sought summary judgment dismissing a slip and fall claim and leave to amend its statement of defence, the court addressed the issue of costs.

The plaintiffs successfully resisted the summary judgment motion, which constituted the primary issue, while the defendant succeeded in obtaining leave to amend its defence to plead that it was not an occupier under the Occupiers’ Liability Act.

Applying the factors under Rule 57 of the Rules of Civil Procedure, the court found that success was divided but favoured the plaintiffs.

Substantial indemnity costs were declined as the defendant’s motion was not unreasonable.

Partial indemnity costs were awarded, adjusted for divided success.

The representative plaintiff in a class proceeding sought costs following a motion to add additional common issues and to determine the method of giving notice to potential class members.

The plaintiff requested costs on a complete indemnity basis, alleging delay and obfuscation by the defendant regarding the number of class members.

The court found that success on the motion was divided but that the plaintiff was substantially successful, particularly on the primary issue relating to the appropriate remedy and the method of providing notice to class members.

Although the defendant’s conduct contributed to the need for newspaper publication notice, the court held it was not sufficiently blameworthy to justify substantial or complete indemnity costs.

Costs were awarded to the plaintiff on a partial indemnity basis.

The defendants brought motions for summary judgment to dismiss the plaintiff's action regarding a right of first refusal on a quarry property.

The plaintiff had operated the quarry under a 1991 agreement that expired in 2006, but continued to pay rent.

The court found the agreement was a lease that renewed on a year-to-year basis.

However, the court held that whether the right of first refusal also renewed, and whether a binding agreement of purchase and sale was formed, were genuine issues requiring a trial.

The defendants' motions for summary judgment were dismissed and an expedited trial was ordered.

The respondent property owner brought a motion to stay an earlier order requiring an engineer to provide the municipality with a draft structural heritage engineering report concerning an unsafe heritage building.

Applying the test for a stay from RJR‑MacDonald, the court accepted that there was a serious issue regarding the municipality’s jurisdiction to require disclosure of the report.

However, the court found that disclosure would not cause irreparable harm because the report was not privileged and any harm would be limited to the respondent’s financial interests if remediation rather than demolition were considered.

The balance of convenience favoured the municipality and the public interest, as the city required all available information to assess safety and potential preservation of the heritage structure.

The motion for a stay was therefore refused.

Following a motion in which the defendants sought to strike the plaintiff’s statement of claim, the court addressed the quantum of costs.

The plaintiff was substantially successful in resisting the primary relief sought, although the defendants succeeded in striking certain remedies and a declaration for breach of contract, and in dismissing a minor abuse of process motion.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including success, proportionality, and the reasonable expectations of the losing party.

Given the divided success, the plaintiff’s entitlement to costs would be reduced.

The court directed the parties to exchange written submissions and a bill of costs regarding the quantum.

The defendant brought a motion for summary judgment dismissing a slip‑and‑fall claim, arguing it was not an occupier under the Occupiers’ Liability Act because the walkway where the plaintiff fell was not included in its lease.

The plaintiffs argued there were genuine issues requiring trial regarding whether the defendant exercised sufficient control over the walkway to qualify as an occupier and whether it could be liable under common law negligence.

The court held that evidence showing employees inspected and salted the walkway and that the entrance was used almost exclusively by the defendant’s customers raised a genuine issue requiring a trial on occupier status and negligence.

The court also granted leave to the defendant to amend its statement of defence to plead that it was not an occupier.

The motion for summary judgment was dismissed.

The defendants brought a motion under Rule 21 to strike the plaintiff's statement of claim, which alleged breach of contract and breach of fiduciary duty by a corporate director.

The court struck the claims for a declaration of breach of contract, divesting the defendant of shares, and removing the defendant as a director, with leave to amend.

However, the court refused to strike the core claims for breach of fiduciary duty, disgorgement, and general damages, finding it was not plain and obvious that these claims would fail at trial.

In a class proceeding, the plaintiffs sought directions for a modified trial procedure to determine the first certified common issue concerning the interpretation of licences of occupation and whether they established a fixed property boundary through a contour line.

The defendant argued the issue should proceed by way of a summary judgment motion supported by affidavits and expert reports.

The court considered the “full appreciation” test for summary judgment and the anticipated need for contested expert survey evidence.

Concluding that summary proceedings would not allow adequate assessment of the expert evidence, the court directed that the common issue proceed by a modified trial procedure with expert reports, an agreed statement of facts, limited discovery, and viva voce expert testimony.

Case management conferences were ordered to establish timelines and further procedural directions.

The defendant brought a motion to stay or dismiss a defamation action as an abuse of process, alleging that the plaintiff’s employer funding her legal costs constituted maintenance and champerty.

The court excluded supplemental affidavits filed after cross‑examinations as irrelevant and inadmissible under the Rules of Civil Procedure and prior case management rulings.

It held that the employer’s decision to fund the plaintiff’s legal fees was justified because the alleged defamatory statements related to work performed in the course of her employment and the plaintiff had independently decided to commence the action.

The court found no evidence of an improper motive, profit‑sharing arrangement, or trafficking in litigation.

Accordingly, the motion alleging champerty and maintenance was dismissed.

In a defamation action arising from blog posts referring to the plaintiff using a racially charged term, the plaintiff brought a motion to compel answers to numerous refusals and undertakings from the defendant’s examination for discovery.

The court considered the scope of permissible discovery under Rule 31.06(1) of the Rules of Civil Procedure and assessed the relevance of the disputed questions to issues including malice, fair comment, damages, and publication.

The court ordered the defendant to answer several questions relating to the factual basis for his fair comment defence, communications with media and on social media, potential witnesses, and information relevant to his limitation defence.

Certain questions were not required to be answered where they sought privileged information or were irrelevant to the issues in the libel action.

The defendant brought a refusals motion seeking orders compelling the plaintiff to answer discovery questions, produce additional documents, and permit further examination for discovery in a defamation action arising from statements made in a blog post.

The court reviewed numerous disputed questions relating to alleged communications with university officials, the plaintiff’s interpretation of allegedly defamatory statements, employment records, and other documents.

The court held that many of the questions sought irrelevant information, including the plaintiff’s subjective interpretation of allegedly defamatory words, which is determined objectively by the trier of fact.

The court further found that the plaintiff had adequately answered the discovery questions and produced all relevant documents in her possession.

The motion for further answers, additional production, and further discovery was dismissed.

The applicant mother brought a motion to establish that the Ontario Superior Court of Justice has jurisdiction to determine custody and access of the parties' three-year-old child.

The respondent father brought a motion to stay the application, arguing that a prior Québec order ratifying a 2009 custody agreement gave Québec exclusive jurisdiction.

The court found that the 2009 agreement and subsequent Québec order were null and void because the parties had reconciled for nearly two years after signing it.

The court held that the child was habitually resident in Ontario, or concurrently in Ontario and Québec, and that Ontario was the appropriate forum.

The mother's motion was granted and the father's motion to stay was dismissed.

Following earlier interlocutory proceedings involving an injunction and Anton Piller order in a dispute concerning confidential engineering information and alleged misuse of intellectual property, the court determined the appropriate costs awards.

The responding party sought costs for obtaining the ex parte injunction and Anton Piller order and for successfully resisting a motion to set them aside.

Applying the factors in Rule 57 of the Rules of Civil Procedure, including success, complexity, proportionality, and reasonable expectations of the losing party, the court found the hourly rates and claimed time generally reasonable.

Although the moving parties achieved limited success in varying certain terms of the Anton Piller order, the injunction and order were maintained.

The court awarded partial indemnity costs to the responding party for the initial ex parte motion and the motion to set aside, with costs of a later motion left in the cause.

Following a successful application determining that the respondents could not unilaterally revoke their resignations as directors of a charitable foundation, the applicants sought costs.

The court found the respondents' conduct in attempting to retake control of the foundation and removing its property to be unreasonable.

The court awarded costs to the applicants on a partial indemnity scale, fixed at $65,000 plus HST and $7,000 in disbursements.

The moving party sought leave to appeal a decision of the Ontario Municipal Board that excluded his lands from the expansion of the urban boundary of the City of Ottawa.

He argued the Board erred in law by imposing an additional noise study condition, accepting the City's noise expert evidence, and awarding zero points for distance to a mixed-use centre.

The Divisional Court dismissed the motion for leave to appeal, finding that the Board's determinations were findings of fact or mixed fact and law, and there was no reason to doubt the correctness or reasonableness of the Board's decision.

A case management judge considered whether he had jurisdiction to award costs for a refusals motion previously heard by another judge who later recused himself before determining costs.

The court held that, having been appointed case management judge to address all outstanding issues, it had jurisdiction to fix costs for the earlier motion.

The affected participant sought partial indemnity costs after successfully defending refusals made by its representatives during examinations.

The court rejected arguments that costs should be denied due to alleged impecuniosity, duplication of counsel, or alleged misrepresentation.

Costs were awarded on a partial indemnity basis with a reduction from the amount claimed.